Motion to Dismiss in the United States District Courts–At A Glance

Use this At A Glance Guide to learn the Federal Rules of Civil Procedure related to bringing a motion to dismiss in the United States District Courts. For imore detailed nformation, including local rules, on bringing a motion to dismiss in a specific United States District Court, please see the SmartRules Motion to Dismiss, Opposition to Motion to Dismiss and Reply in Support of Motion to Dismiss Guides for the court where your action is pending.

Timing:

A Rule 12(b) motion must be made before pleading if a responsive pleading is allowed. FRCP 12(b). For any party other than the United States, it must be made on or before the 20th day after service of the complaint. FRCP 12(a)(1).

Grounds: 

A Rule 12(b) motion can be based on: (1) lack of subject matter jurisdiction; (2) lack of personal jurisdiction; (3) improper venue; (4) insufficient process; (5) insufficient service of process; (6) failure to state a claim upon which relief can be granted; and (7) failure to join a party under Rule 19. FRCP 12(b)(1) – (7).

Other Motion to Dismiss Rules: 

If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56. All parties must be given a reasonable opportunity to present all the material that is pertinent to the motion. FRCP 12(d).

A motion under Rule 12 may be joined with any other motion allowed by Rule 12. FRCP 12(g)(1).

Except as provided in Rule 12(h)(2) or (3), a party that makes a motion under this rule must not make another motion under this rule raising a defense or objection that was available to the party but omitted from its earlier motion. FRCP 12(g)(2).

A party waives any defense listed in Rule 12(b)(2)-(5), these include lack of personal jurisdiction, improper venue, insufficient process and insufficient service of process) by omitting it from a motion in the circumstances described in Rule 12(g)(2); or failing to either: (i) make it by motion under this rule; or (ii) include it in a responsive pleading or in an amendment allowed by Rule 15(a)(1) as a matter of course. FRCP 12(h)(1).

Failure to state a claim upon which relief can be granted, to join a person required by Rule 19(b), or to state a legal defense to a claim may be raised in any pleading allowed or ordered under Rule 7(a); by a motion under Rule 12(c); or aAt trial. FRCP 12(h)(2).

If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action. FRCP 12(h)(3).

If a party so moves, any defense listed in Rule 12(b)(1)-(7) – whether made in a pleading or by motion – and a motion under Rule 12(c) must be heard and decided before trial unless the court orders a deferral until trial. FRCP 12(i).

The authorities cited in this At A Glance Guide are current as of the publication date. For authorities updated in real time, please see the SmartRules Guide for the litigation document you are drafting.

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